Rudesill v. Charter Communications, LLC

United States District Court, M.D. Louisiana

July 16, 2018

LISA RUDESILLv.CHARTER COMMUNICATIONS, LLC

NOTICE AND ORDER

ERIN
WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

Plaintiff,
Lisa Rudesill (“Plaintiff”), filed a Petition
(the “Petition”) in state court for damages
allegedly arising out of injuries Plaintiff sustained in a
June 8, 2017 accident. Plaintiff alleges that a low hanging
utility line hung by defendant “was snagged by a boat
being towed down Plaintiff's driveway. As the cable
parted, plaintiff became entangled in it and the forward
movement of the boat caused her to be dragged across the
ground and underneath the moving boat
trailer.”[1] On July 12, 2018, defendant, Charter
Communications, LLC (“Defendant”) filed a Notice
of Removal pursuant to 28 U.S.C. § 1332 based on the
assertion that the amount in controversy exceeds $75, 000,
exclusive of interest and costs, and the parties are
completely diverse.[2]

Although
Plaintiff is alleged to be a citizen of Louisiana,
[3]
Defendant's allegations regarding its own citizenship are
insufficient. In her Petition, Plaintiff alleges that
Defendant is “a limited liability
company….”[4] It appears based on Defendant's
name - Charter Communications, LLC - that Plaintiff
correctly describes Defendant as a limited liability company.
However, in its Notice of Removal, Defendant asserts that it
“is a foreign corporation domiciled in the state of
Delaware, with its principal place of business in the state
of Missouri….”[5] If Defendant is a corporation, it
must allege its state of incorporation as well as its
principal place of business.[6] In light of the discrepancy
between its name and its assertion that it is a corporation,
Defendant must also include an explicit allegation explaining
the discrepancy.[7] If, alternatively, Defendant is a limited
liability company, Defendant must identify each of the
members of the unincorporated association and the citizenship
of each member in accordance with the requirements of §
1332(a) and (c).[8] The same requirement applies to any member
of the limited liability company which is also a limited
liability company.[9]

In
addition to the insufficiency of Defendant's allegations
of citizenship, the undersigned also sue sponte
raises the issue of whether the amount in controversy
requirement has been met. Per the Petition, Plaintiff alleges
that she sustained “[a] severe injury to her right
shoulder, which has required and continues to require
extensive treatment, and will likely require surgery, ”
“[c]uts, abrasions and cable burns to her torso, arms,
legs and other body parts, which have resulted in permanent
scarring and disfigurement, ” “[p]hysical pain
and suffering, ” “[e]motional pain and suffering
along with mental anguish and manifestations including
nightmares, flashbacks and the like, ” “[l]oss of
earning capacity, and an inability to fully perform and
provide household services and to engage in household
activities, leisure time activities, and family activities,
” “[m]edical and related expenses, which continue
to accrue, ” and “[o]ther damages which relate to
her injuries….”[10] In addition to citing this
list of alleged damages, Defendant contends in its Notice of
Removal that the amount in controversy requirement for
federal subject matter jurisdiction is satisfied because
“plaintiff has not asserted in her Petition that the
amount in controversy does not exceed the amount
necessary” and because “Plaintiff's attorney
has not agreed to stipulate that the amount in controversy is
less than $75, 000.00.”[11]

The
Petition does not provide any information regarding
Plaintiff's amount of medical expenses. Although
Plaintiff contends that her shoulder “will likely
require surgery, ” Plaintiff has not alleged that
surgery has been recommended or will actually occur. There
are no verified discovery responses (such as requests for
admission) or pre-removal settlement demands. Based on the
information asserted in the Petition and Notice of Removal,
the court sua sponte raises the issue of whether it
may exercise diversity jurisdiction in this matter,
specifically, whether the amount in controversy requirement
has been met.

Accordingly,
IT IS HEREBY ORDERED that Charter
Communications, LLC shall file a Motion to Substitute the
Notice of Removal with a comprehensive Notice of Removal that
adequately alleges the citizenship of Charter Communications,
LLC pursuant to the rules applicable to either corporations
or unincorporated associations. Charter Communications, LLC
shall have seven (7) days from this Notice and Order to file
the Motion to Substitute. No further leave of court is
required to file the Motion to Substitute.

IT
IS FURTHER ORDERED that Charter Communications, LLC
shall file a memorandum and supporting evidence concerning
whether the amount in controversy requirement of 28 U.S.C.
§ 1332 is met, within ten (10) days of this Notice and
Order.

IT
IS FURTHER ORDERED that Plaintiff shall file either:
(1) a memorandum and supporting evidence concerning whether
the amount in controversy requirement of 28 U.S.C. §
1332 is met; or (2) a Motion to Remand within ten (10) days
after the filing of the Defendant's memorandum regarding
subject matter jurisdiction.

The
case will be allowed to proceed if jurisdiction is adequately
established.

[3] Per the Petition, Plaintiff alleges
that she is a &ldquo;resident and domiciliary of the Parish
of Tangipahoa.&rdquo; R. Doc. 1-2, p. 1, &para; I. For
purposes of diversity jurisdiction, an individual&#39;s
domicile must be alleged. See, Mas v.
Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For
diversity purposes, citizenship means domicile, mere
residence in the State is not sufficient.”). While the
Notice of Removal only alleges that Plaintiff “is a
resident of the Parish of Tangipahoa, State of ...

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